DWI SARWIYATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 761/2023

[2024] HKCFI 3493

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 761 OF 2023

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 7 October 2022 refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of Indonesia who last arrived in Hong Kong on 16 January 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 16 January 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 16 February 2021, she did not depart and instead overstayed, and was arrested by police on 29 March 2021. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her husband for failing to send him money to repay his debts.

2.  The Applicant was born and raised in Desa Sojokerto, Sub-district Leksono, District Wonosobo, Central Java, Indonesia. After leaving school she married her husband and raised a family with 2 children in her home district.

3.  In 2006 she went to Singapore and then Taiwan to work as a domestic helper until 2014 when she returned to her home in Indonesia.

4.  However, in 2016 she was asked by her husband to return to work to help him to repay his loan due to a local loan shark which he had earlier borrowed to start his own business but which had turned out unsuccessful, and so in 2017 she came to Hong Kong to work as a foreign domestic helper and to remit money every month to her husband in Indonesia to help him to repay his debts.

5.  However, after her last employment was prematurely terminated in February 2021, and when she was unable to remit any money to Indonesia, her husband became furious and threatened on the phone to kill her when she returned to Indonesia, and so the Applicant was afraid to leave and therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 July 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 8 September 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to seriously harm or kill her other than some angry words and empty threats, that in any event it was a private domestic or monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 275 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband to locate her.

8.  On 23 September 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 3 October 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 7 October 2022, her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of fear of harm from her husband over their monetary dispute that caused her to overstay in Hong Kong to seek protection, but found no reliable evidence of any real intention of her husband to seriously harm or kill her other than to press her to give him money to repay his debts, and that in any event it was a private monetary dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 18 May 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  That the Adjudicator did not consider her claim properly or to take time to proper think about her life before dismissing her claim;

(2)  That the Adjudicator unreasonably refused to allow her to submit her supporting documents without translation or to give her time to arrange for their translation;

(3)  That the interpreter did not help her in interpreting her evidence and was impatient with her during her appeal hearing.

11.  By then the Applicant was however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

12.  As the last day of the three-month period for her to file her Form 86 fell on 7 January 2023, the Applicant was therefore more than 4 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of more than 4 months must be considered as very substantial and inordinate, for which she explained at the hearing of her application that she was not aware of the procedural rules, and that she had had to find a friend to help her with the preparation of her application, but by the time she was ready to file her application, she was already out of time.

14.  The record shows that the decision was sent on the same day of 7 October 2022 to the Applicant’s then reported address without being returned through undelivered post, and while ignorance of the law can never be accepted as any valid reason or excuse for their non-compliance. In the circumstances I am unable to see any good or valid reason for the Applicant’s serious delay.

15.  As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just some bare and vague assertions without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to properly consider her claim or that the interpreter was unhelpful or impatient with her during her hearing before the Board, or what documents that she had sought to produce to the Board without translation when even up to now in her present application that she has still failed to identify such documents or to seek to produce them. As such, I do not find any of the Applicant’s proposed grounds reasonably arguable for her intended challenge or any merits in her intended application.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1